Obamacare and Supreme Court Review (Part Three)

(Note:  This is the third and concluding segment in a three part series.  The first segment traced the confrontation between the executive and judicial branches to the powerful forces of conservatism to maintain and preserve the status quo.  The second segment featured examples of the confrontation in action from the archives of US History...)


In a new twist in the opposite direction of its conservative character, the Supreme Court relied on innovative readings of the constitution to resolve the disputed 2000 presidential election in favor of the more conservative candidate.  It was the first and only presidential election decided by the Supreme Court in US history.

The outcome of the election between Vice President, Al Gore (Democrat), and Texas Governor, George W. Bush (Republican), turned on a razor thin victory for Mr. Bush in the state of Florida, where his brother, Jeb, was Florida’s governor.  But the Florida Supreme Court ruled that state law required a statewide manual recount of all ballots in which a machine failed to register a vote for president.

A federal lawsuit ensued.  The five most conservative justices on the US Supreme Court issued a ruling that no more recounting could take place, explaining that the review of these ballots threatened “irreparable harm to (Mr. Bush), and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”  The dissent responded that “counting every legally cast vote cannot constitute irreparable harm.”

The conservative majority noted that the Florida Supreme Court’s failure to articulate a more specific standard for determining a legitimate vote violated the constitution.  Under a different set of circumstances it might have been possible to send the case back to the Florida Supreme Court to create a more explicit standard.  But the majority announced its belief that the state of Florida intended to resolve all disputes by the federal deadline ensuring the state's electoral college votes would not be challenged in Congress.  Since the decision was handed down on the evening of the deadline, there was no time left to count votes.

The practical effect of this decision was to declare Mr. Bush the president-elect.  Mr. Gore promptly conceded.

The dissent argued that the US Supreme Court had no business interfering in the presidential election dispute, stressing that these issues were more properly addressed by the state of Florida and then Congress, if necessary.  The dissent also emphasized that the majority's opinion was inconsistent with the previously expressed views of those justices on limited government and that the actual loser of this presidential election was “the Nation's confidence in the judge as an impartial guardian of the rule of law.”  Allegations of partisan decision were inescapable.

·            The present 2012 election year political environment, with a progressive Democratic president facing conservatism again seemingly retired into the judiciary, bares similarities with prior instances.  And so Mr. Obama’s recent sentiments expressed on the pending constitutional challenge should come as some surprise: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

But Mr. Obama’s confidence may be little more than a product of wishful thinking.  The independence of the US Supreme Court in its decision-making methodologies is beyond question and as such strictly another matter.  Its own political labels and rigid ideologies may be discarded, even the opposition’s ideologies borrowed and reformulated for convenience.  History demonstrates that a conservative US Supreme Court is more than ready, willing and able to become judicially active, big government style.  It may even don the insipid label of the “L” word, “liberal”.  All judicial options are on the table, when it comes to crafting a result which protects the status quo in particular deference to its powerful conservative minority constituency.

President Obama has said: “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint.  That a group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.”  The President is a popular chief executive who by his words has fired an interesting political warning shot across the bow of a conservative Supreme Court.  If the idea of an adverse ruling can be felt as a tremor, then the ramifications of an actual decision striking down the new healthcare law has the potential of a political earthquake.

-Michael D'Angelo

Obamacare and Supreme Court Review (Part Two)

(Note: This is the second segment in a three part series. The first segment traced the confrontation between the executive and judicial branches of the US federal government to the powerful forces of conservatism to maintain and preserve the status quo.)

But as provocative as it sounds, this confrontation between the three branches of government is hardly new in the annals of US History...

As early as 1801, following the administrations of Washington and Adams, President Thomas Jefferson lamented the increasing shadow of federal power. The earliest champion of limited government astutely reasoned that its concentration within the defeated opposition party had merely been “retired” to the judiciary as a stronghold. “There the remains of Federalism are to be preserved and fed from the treasury and from that battery all the works of Republicanism are to be beaten down and erased.” His experience had merely demonstrated the prostration of the judiciary before partisan purposes.

In Jefferson’s case, the force of judicial opposition was blunted and rendered of little consequence as time went on, however, and his influence and revolution spread. His elected presidential successors, James Madison in 1808 followed by James Monroe in 1816, culminated nearly a quarter century of unprecedented Jeffersonian rule and the virtual disintegration of the opposition party.

Following in Jefferson’s footsteps, President Andrew Jackson protested an 1832 US Supreme Court decision affirming the expanding powers of the federal government. The decision provided that the federal government and not the states had authority in American Indian affairs. In response to the ruling, the colorful, quotable and enormously popular “president of the common man” was said to have remarked: “John Marshall (Chief Justice) has made his decision; now let him enforce it!”

In an otherwise progressive presidential administration, it was a rather isolated instance of conservatism with respect to American Indian affairs meeting a judicially active US Supreme Court head on.

The turn of the 20th century produced a similar chemistry under the presidency of Theodore Roosevelt, a rare progressive Republican. In 1905 the US Supreme Court struck down a New York state law regulating sanitary conditions and prohibiting individuals from working in bakeries for more than 10 hours per day or 60 hours per week. The Court ruled that the law limiting bakers’ working hours did not constitute a legitimate exercise of state police powers. Rather, the proper authority was the federal government, which in this instance and to that point had not acted, resulting in a void of leadership.

It was another case of a conservative US Supreme Court tamping down progressive legislation on behalf of labor and human welfare.

The dissenting (minority) opinion, only three paragraphs long, was noteworthy. It accused the conservative majority of judicial activism, pointedly claiming that the case was “decided upon an economic theory which a large part of the country does not entertain.” The minority added that “Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory.”

Over the years the case has been one of the most condemned in US history and has been used to symbolize judicial dereliction and abuse. In other words, it is a form of shorthand for extreme right wing constitutional theory. In reality, the Supreme Court was merely protecting the conservative status quo.

By the late 1930s President Franklin D. Roosevelt introduced a reform plan to re-organize the Supreme Court on its perception as a conservative hold out in an increasingly progressive climate. Termed a “Court-packing” procedure, F.D.R.’s plan sought to increase the number of sitting Justices. The idea was to increase his ability to enact New Deal programs aimed at expanding the federal government's power to alleviate the poverty-stricken conditions of the ongoing Great Depression.

The number of Justices had originally been set at 6 by Congress. In 1869 following subsequent changes in policy, the number was placed at 9. Since appointments were for life, this limited a president's power over the Supreme Court to the ability to place new nominees into vacancies on the bench, whenever they should occur. The proposed legislation would have allowed the president to select as many as 6 new Justices, each for every member over 70.5 years of age, on the theory that this would allow for the diminished capabilities of older justices. Those diminished capabilities were decidedly conservative.

Contrary to what was originally expected from the legislation, however, its failure to pass Congress coincided with the evolution of a Supreme Court newly supportive of the New Deal. While judging whether this was merely a coincidence may be a matter of speculation, its introduction damaged and cost F.D.R. some of his political support.

By the time of the 2000 presidential election the Supreme Court remained on a conservative bent as a lagging phenomenon from the successive administrations of Presidents Reagan and Bush/”41”, dating from the 12 year period from 1980-1992. Each administration was firmly and consistently outspoken against judicial activism.

Yet, in a new twist in the opposite direction of its conservative character, the Supreme Court relied on innovative readings of the constitution to resolve the disputed 2000 presidential election in favor of the more conservative candidate. It was the first and only presidential election decided by the Supreme Court in US history.

(Next week's third and final segment analyzes the legal twists and turns in the US Supreme Court case of Bush vs. Gore and concludes in the present with the Court's consideration of the constitutionality of Obamacare.)

-Michael D'Angelo